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In a decade, health judicialization grows 130%

The number of health lawsuits in Brazil increased by 130% between 2008 and 2017, a much faster growth than that observed in the total volume of cases (50%).

In the period, the volume of shares in the first instance jumped from 41,453 to 95,752, totaling almost 500,000 lawsuits. In the second instance, it went from 2,969 to 40,658, totaling almost 270,000. 

These are demands against the SUS and against health plans that require new drugs and procedures of high complexity to basic things, such as hospital beds, consultations and medications. 

The data are from an unprecedented national study on the judicialization of health conducted by Insper, on request of the CNJ (National Council of Justice), and published on Monday (18) in a seminar at the Syrian-Lebanese Hospital. 

In addition to showing the growth of processes, the work revealed regional differences in the judicialization of the second instance. In the northern region, requests for beds are present in 75.2% of the demands (a single action can involve multiple items). In the Southeast, this claim was responsible for 36.7% of the shares. 

"Brazil is different in the judicialization of health. There are several types, with distinct profiles and effects. There is a need for appropriate policies for each of these problems," says Paulo Furquim, professor at Insper and one of the coordinators of the study. 

Present at the event, The Minister of Health, Luiz Henrique Mandetta, said that, in the SUS, there is judicialization "of punctual access to medicines that are in the national network, and a huge amount of small surgeries, which are the fruit of the disorganization of the system, the lack of computerization and underfunding". 

However, according to him, the judicialization that most worries is the one that seeks the incorporation of new inputs and technologies. The minister states that one of the exits found will be the sharing of risk with the industry.

That is, the laboratory needs to prove the effectiveness of the medicine distributed to the population,at risk of having to return the resource to the public coffers. In Italy, for example, 65% of decisions use this strategy. 

In relation to lawsuits against the SUS, drugs appear in 73.8% of cases. Imported people account for 11% of them.

For Minister Dias Toffoli, president of the Supreme Court , it is important to find ways to reduce the participation of justice in the resolution of conflicts related to health. 

"Magistrates cannot manage the budget of health care companies," he said during the event.

Toffoli, who also chairs the CNJ, said the board has actions for monitoring and resolving demands in the area. 

In one of them, made in partnership with the Albert Einstein and Sírio-Libanês hospitals, a nucleus (eNAT-Jus) provides technical advice to support decisions on issues of drug supply,procedures and medical treatments.

"The goal is to give the judge the subsidies so that he can decide, based on the best scientific evidence, whether that request makes sense, whether the patient will benefit," says Luiz Fernando Reis, director of education and research at Sírio.

For the researcher Fernando Aith, professor at the School of Public Health of USP, there are cases in which judicialization harms the patient. "The judge considers too much the medical prescription in the decision. Often, due to conflicts of interest or not, the doctor may be misguided in relation to the best treatment to the patient and this, without filtering organs, can be dangerous." However, there are many actions asking for products or services that should be available to the population. In Pará, for example, most drug courtization refers to medicines that are on the SUS list.

This type of demand is different from that frequently observed in São Paulo, where patients often request procedures or medications not provided for in the SUS or by the ANS (National Agency for Supplementary Health.

In the state of São Paulo, 82% of the processes (116,518) refer to health plans. "This indicates that the private system is very poorly regulated or that it does not deliver what it promises or that the user is more quarrelsome, has more citizenship and will seek his rights," says Fernando Aith.

The research also shows that only 2.3% of the lawsuits are collective, out of a total of 13% of the total dealing with collective issues, which reveals that the judicialization of health occurs much more through the individual route than by the collective. 

In cases of second instance, there is a greater predominance of collective actions in the North region, especially in Pará (25.6%) and Roraima (185), and lower in the South and Southeast (in Rio Grande do Sul, only 0.44% and in São Paulo, 2.8%). 

The study also analyzed the content of guardianship anticipation decisions (injunctions). In the SUS, more medicines are requested. In supplementary health, diets, inputs or materials, beds and procedures are.

March 19, 2019 - Source: Folha de S. Paulo - Cláudia Collucci